G. Transportation Obligations

• Author: Patrick J. Monahan - Byron Shaw
• Pages: 405-407

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One of the distinctive features of the Canadian constitution is the inclusion of a significant number of transportation-related obligations imposed on the federal government. For example, under section 145 of the Constitution Act, 1867, the federal government was required to commence construction of the Intercolonial Railway (linking the maritime provinces with Quebec) within six months of confederation; Term 11 of the British Columbia Terms of Union required the construction of a transcontinental railway; the Prince Edward Island Terms of Union required the Canadian government to maintain a ferry service linking the island with the mainland; and the Newfoundland Terms of Union provide a guarantee of ferry service between the province and the Canadian mainland. Students of Canadian history have long remarked on the number and specificity of these constitutional obligations.

The instruments setting out these constitutional obligations are all included within the definition of the Constitution of Canada in section 52 of the Constitution Act, 1982.¹¹²Thus, any federal laws that are inconsistent with the relevant obligations would be of no force and effect. However, most of the constitutional obligations require Canada to construct transportation undertakings, as opposed to operate those undertakings on their completion. Thus, to a large extent, Canada’s obligations in this regard were fulfilled in the latter half of the nineteenth century. The termination or reduction of passenger rail service in Canada in the past few decades has prompted two provinces, Prince Edward Island and British Columbia, to argue that these reductions in service are unconstitutional, since they violate constitutional

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guarantees relating to transportation. However, both of these challenges proved unsuccessful. In Prince Edward Island, the shutdown of all rail lines on the island was challenged on the basis that the rail lines were inextricably bound up with and necessary to the operation of the ferry service. But this argument was rejected by the Federal Court of Appeal on the basis that the constitutional obligation to operate a ferry service did not extend to the operation of an associated railway.¹¹³In

British Columbia, the province challenged the shutdown of a small railway on Vancouver Island on the basis that it violated the requirement in Term 11 of the British Columbia Terms of Union that Canada construct a transcontinental railway. A...